David Cameron has announced that the Conservative Party is committed to a Sovereignty Act. With the final ratification of the Lisbon Treaty, this is, as he recognises, absolutely essential. Indeed it has been essential for many years.
I introduced a Sovereignty Bill in 1995, supported by the late John Biffen and others, in the wake of the creation of European government under the Maastricht Treaty. More recently, I have tabled Supremacy of Parliament amendments to a number of Bills on which David Cameron has given instructions to the whips not only to support my amendments overriding European legislation as necessary and requiring the judiciary to give effect to this — in line with seminal constitutional judgments by Lord Denning, Lord Diplock and Lord Justice Laws — but even putting in official opposition tellers. On a similar amendment specifically related to the Act implementing the Lisbon Treaty itself, which consolidates all the existing treaties, 40 Conservative MPs, including former members of the Cabinet and Shadow Cabinet, voted for it.
The sovereignty of Parliament is not an exercise in theology. It is essentially practical. It is the foundation of our democracy and the guarantee of freedom — freedom of speech and freedom to legislate on behalf of the democratic wishes of the voters. It is freedom also to reform.
It would be an unmitigated disaster and the ultimate gift to Ukip and the BNP if, on top of the present refusal to hold a referendum on the European question (despite the precedent of the Referendum Act 1975) after the next general election, it was to turn out that the guarantee of a Sovereignty Bill, far from being cast-iron, was no more than window-dressing and a mere reassertion of what everyone knows is the textbook doctrine of “the ultimate supremacy of Parliament”. The Conservatives lost 26 marginal seats at the last election through Ukip intervention.
The Sovereignty Act has to grapple, in practice, with the asserted sovereignty of the EU. What this boils down to is that the Act must make provision for the overriding where necessary (in line with those judgments of Denning, Diplock and Laws) of the doctrine of primacy of the EU and the European Court of Justice. The European Court asserts primacy of European law not only over our laws but also over our Constitution. The root of this asserted European primacy is our voluntary enactment, as Lord Bridge put it in the Factortame case, of the European Communities Act 1972. This has to be tackled head-on if the Sovereignty Act is to have any meaning. Similarly, the repeal of the Human Rights Act will need to be fully effective, particularly given the new encroachment of the Charter of Fundamental Rights under Lisbon.
It is essentially a practical necessity because it affects the whole running of our economy. It would be fatal to believe that we could restore the British economy in our vital national interest without repatriating, as Cameron has promised, the European burdens on business that make us uncompetitive. To this can now be added European financial regulation of the City of London, which in practice will pit the City, hopelessly trapped by majority voting within the European jurisdiction influenced by France and Germany, against New York, not to mention the now futile Stability and Growth Pact and the economic rules and criteria controlled by the EU.
A Sovereignty Act which does not provide where necessary for the overriding of the European Communities Act would create so much uncertainty that it would invite our new Supreme Court to refer the matter to the European Court of Justice. Failure to be explicit would turn the Sovereignty Act into a Trojan Horse of European law and far from establishing sovereignty, would in practice give it away.